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Decided on January 31, 2013
Sur Ct, Nassau County

2011-367864A
Lance D. Clarke, Esq. (Attorney for petitioner) Cooke & Clarke 33 Front Street, Suite 204 Hempstead, NY 11550 Edward W. McCarty, J.
In this contested probate proceeding, the petitioner, Charmaine E. Cooper, a putative

beneficiary thereunder, moves for an order granting summary judgment to her to admit a copy of a one page undated instrument alleged to be the last will and testament of the deceased to probate and as there is no executor named therein for the issuance of letters of administration c.t.a..
The decedent died on June 24, 2011, at age 57 of colon cancer, survived by his son, William
L. Mitchell, Jr. as his only distributee. The propounded instrument, the original of which is missing, makes certain bequests of personal property to his mother as aforesaid, including electronics and jewelry to objectant, and otherwise provides: "I ... would not want my 401K, IRA/Retirement and life insurance beneficiary contested. Be it known that [petitioner] has been and currently is 100% vested to receive all monies vested to her. My son [objectant] is a secondary beneficiary to life
insurance only ... ."[FN1] The will also bequeaths the decedent's electronics and jewelry to objectant.
Pursuant to SCPA 1407, a lost or destroyed will or codicil may be admitted to probate only upon establishing: (1) that the will has not been revoked; (2) proper execution; and (3) the provisions of the missing will.
Petitioner had submitted her own lost will affidavit with her court petition and has submitted a further affidavit in support of this motion. Moreover, affidavits of two of the attesting witnesses Timothy Butler and Grady Johnson have been submitted. [The third witness is decedent's mother, Daisy Mitchell.] Mr. Mitchell has submitted a 3 page affidavit in opposition to the motion and in a cover page thereto cross-references his answer originally filed in court on [*2]October 24, 2012. Those submissions challenge that the instrument was properly executed and the decedent's testamentary capacity.
Summary judgment may be granted only when it is clear that no triable issue of fact exists (see
e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307, 311 [1972]). The court's function on a motion for summary judgment is "issue finding" rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), because issues of fact require a hearing for determination (Esteve v Abad, 271 App Div 725, 727 [1st Dept 1947]). Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]). If there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v Fishman, 155 AD2d 415, 416 [2d Dept 1989]).
If the moving party meets his or her burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In doing so, the party opposing the motion must lay bare his or her proof (see Towner v Towner, 225 AD2d 614, 615 [2d Dept 1996]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Prudential Home Mtge. Co., Inc. v Cermele, 226 AD2d 357, 357-358 [2d Dept 1996]).
Summary judgment in a contested probate proceeding is appropriate where an objectant fails to raise any issues of fact regarding testamentary capacity or execution of the will (see Matter of DeMarinis, 294 AD2d 436 [2d Dept 2002]; Matter of Rosen, 291 AD2d 562 [2d Dept 2002]; Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]).
Turning initially to those elements of SCPA 1407 that are not controverted, the court is satisfied that the original instrument's provisions have been established by the conformed copy of the original instrument as confirmed by two of the witnesses (SCPA 1407 [3]). As to revocation, as recited in petitioner's lost will affidavit and other court documents, the original will was removed from the decedent's lock box at his residence 2 days after he died in the presence of several family members including objectant. Thereafter such original was lost, mislaid or disappeared under suspicious circumstances. Nevertheless, as it appears the instrument was signed 21 days prior to decedent's death, the location of the original and the fact that no later instrument has been presented, the court is satisfied that the instrument was not revoked.
The proponent of a will offered for probate has the burden of proving that the instrument was properly executed. Due execution requires that the testator's signature be affixed at the end of the will in the presence of witnesses, that the testator publish to the witnesses that the instrument is his/her will, the attesting witnesses must know that the signature is that of the testator, and at least two of the attesting witnesses must attest to the testator's signature and sign their names and affix their residences within a thirty-day period (EPTL 3-2.1).
In the affidavits of the attesting witnesses, one described as a friend of the decedent and the other as his minister, both aver that although the instrument is not dated, the execution of same by the deceased took place on May 30, 2011 in their presence as well as that of Daisy [*3]Mitchell; the decedent declared the instrument to be his last will and testament; and the witnesses, all in each other's presence and in the presence of the decedent, signed the document as such. While the witnesses' addresses are not recited in the instrument, that omission does not invalidate the will.
Objectant questions the sufficiency of his father's declaration of his intent in the instrument, the lack of any self-proving affidavit on its face, and contends that the fact that it is undated means that the witnesses could not credibly swear that decedent signed the will in their presence. There is no particular order for the requisite formalities of execution and in that vein it has been held that the informality of the instrument itself [a letter] will not foreclose its testamentary effect. (Matter of Kenneally, 139 Misc 2d 198 [Sur Ct, Nassau County 1988]). In the face of petitioner's prima facie showing, the efforts of objectant fall far short of raising a material issue of fact on the question of due execution.
The petitioner also has the burden of proving testamentary capacity. It is essential that the testator understand in a general way the scope and meaning of the provisions of his will, the nature and condition of his property, and his relation to the persons who ordinarily would be the objects of his bounty (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]). Although he need not have precise knowledge of his assets, he must be able to understand the plan and effect of the will, and less mental faculty is required to execute a will than any other instrument (see Matter of Coddington, 281 App Div 143 [3d Dept 1952], affd 307 NY 181 [1954]).
In the affidavits of the attesting witnesses they aver that at the time of execution the decedent appeared to be competent to make a will and not otherwise mentally impaired. Given their relationship to him, presumably they knew the deceased for some period of time. Such sworn statements by them create a presumption decedent was of sound mind when he executed his will. (Matter of Leach, 3 AD3d 763, 765 [3d Dept 2004].) Mr. Mitchell Sr. passed at a relatively young age. He died at home where he had lived with his mother. While there are no medical records or affidavits from physicians submitted from either party, there is no credible indication that the colon cancer impacted his mental functioning. Petitioner recounts decedent's actions during the last six months of his life, attempting to put his affairs in order, and cryptically recounts his course of treatment in New York and Pennsylvania including chemotherapy in an effort to battle the disease. While inartfully phrased, the will reflects clear cognitive functioning as to his assets and relationships with his family and friends.
Mitchell Jr. is approximately 40 years old, lives in Connecticut, and has children of his own. There is no mention whatsoever in his affidavit of when the last time he saw his father in person before he died. In his affidavit in opposition to the motion, objectant avers that "... as early as March of 2011 [my father] did not have the mental capacity and or the memory to know he had draw up a will ... until such time as he died." The source of his knowledge of his father's condition was an alleged series of telephone calls during the first half of 2011 with his father and his aunt. He alleges that during these phone calls his father was forgetful, distracted, and in pain and thus depressed. He also avers that his father's medication effected his short term memory, but offers no proof of the allegation other than this own testimony.
All of the opposition is prohibited by the Deadman's Statue (CPLR 4519) or otherwise based on hearsay. The Court of Appeals has determined that evidence that might be excludable [*4]under the Deadman's Statue could be considered for the purposes of defeating summary judgment provided it was not the only evidence offered on opposition to the motion (Phillips v Kantor & Co., 31 NY2d 307 [1972]). Similarly, hearsay evidence is insufficient to defeat summary judgment if that is the only evidence offered in opposition (Roche v Bryant, 81 AD3d 707 [2d Dept 2011]). Thus, since the only evidence offered in opposition to the motion will be excluded at trial, the opposition fails to raise a triable issue of fact.
Accordingly, proponent's motion for summary judgment is granted.
Settle decree on notice.
Dated: January 31, 2013
EDWARD W. McCARTY III
Judge of the
Surrogate's Court

Footnotes
Footnote 1:While the relationship between petitioner and decedent is not specifically characterized in the papers submitted, it is readily apparent from the heartfelt recitations in the instrument and other documents submitted that they were close and loving companions for some length of time.

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